Tennis Ruling a False Start

3/12/2012 12:01 AM Eastern

By: Seth L. Cooper, Free State Foundation

In the Tennis Channel’s Section616 “program carriage” complaint, anadministrative law judge ruled it wasunfair discrimination when Comcastsaid no to the Tennis Channel’s request— made during an existing contractterm — to be included in the sameprogramming tier as the Comcast-affiliated Golf Channel and Versus (nowNBC Sports Network). The administrativelaw judge ordered Comcast to carrythe Tennis Channel on terms similar tothose channels.

The ALJ’s Tennis Channelruling raises seriousFirst Amendment problems.Hopefully, the full FederalCommunications Commissionwill take First Amendment principlesseriously and reverse the ALJ’sruling on appeal.

Section 616 prevents multichannelvideo programming distributorsfrom preferring affiliated videoprogramming over non-affiliatedprogramming if it “unreasonablyrestrain[s] the ability of an unaffiliatedvideo programming vendor tocompete fairly.” Whatever the FCC’sobligations under Section 616, itsactions must still be consistent withthe First Amendment. This includesthe Constitution’s general prohibitionof government censorship ofspeech based on content.

The ALJ’s Tennis Channel rulingis especially problematic because itis unmistakably content-based. TheALJ analyzed and compared the respectiveprogramming of the TennisChannel with the Golf Channeland Versus. This included the extentof overlap between the respectivechannels in terms of programminggenres, target audiences, advertisers,and ratings. Deeming the TennisChannel “similarly situated,” theALJ concluded unfair discriminationagainst Tennis Channel resultedfrom certain business and editorialdecisions made by Comcast, such aschannel and tier placement.

As a remedy, the ALJ’s ruling “requiresComcast to carry Tennis Channelat the same level of distribution thatit carries the Golf Channel and Versus.Comcast Cable otherwise has fulldiscretion in determining the level itchooses to carry the three channels.” Italso requires Comcast “to provide TennisChannel with equitable treatment(vis-à-vis the Golf Channel and Versus)as to channel placement.”

In so doing, the ALJtried to brush aside concernsabout rights of editorialdiscretion. The ALJasserted Comcast couldstill choose not to carryany of those three channels — but ifit did choose to carry either of its affiliated channels then it would haveto carry the Tennis Channel on similarterms. This attempted workaroundwon’t work at all if First Amendmentrequirements are taken seriously.

The conditional nature of the ALJorder’s remedy also undermines anyclaim that restrictions on Comcast’seditorial discretion are justified by itspromotion of diversity and competitionin the video programming market.How could the ALJ’s order be saidto promote programming diversity ifComcast drops the Tennis Channelalong with its affiliated channels?

Lastly, it’s worth considering thatthe entire program-carriage regulatoryframework stands on shakyground: 1990s analog-era cable regulationswere upheld from FirstAmendment challenge on the basisof a perceived local cable “bottleneck.”But the days when cableproviders enjoyed a 90% marketshare are long gone.

If the commissioners take freespeech protections seriously, theyshould reverse the ALJ’s ruling.